A boy, the law, common sense

ByDANIEL SCHORRDecember 17, 1999

Bad cases, they say, make bad law. Add politics, and you get worse law.

In 1995, the Clinton administration, appalled by the influx of Cuban "boat people," some of them criminals, made an agreement with the Castro government. It provided, "Cuban migrants intercepted at sea by the United States, and attempting to enter the United States, will be taken to Cuba."

Congress enacted an exception for immigrants with "extraordinary ability in the sciences, arts, education, business or athletics." That opened the door to defecting Cuban baseball stars. For the rest, the law was clear: Cubans who wanted to come to this country would have to apply for visas in Havana and take their chances with a lottery providing 20,000 visas a year.

Then a dilemma arose in the form of a six-year-old boy found clinging to an inner- tube off the Florida coast. His mother and stepfather were lost with nine others in a powerboat that had capsized and sunk.

Young Elian Gonzalez was turned over to his great-uncle and great-aunt in Miami, and by extension to the Cuban-American community - a poster boy for America's long-standing feud with Castro's Cuba.

In Cuba, there were huge demonstrations for the return of Elian. The State Department, unmoved, said Elian's custody was a matter for the Florida courts.

"In the United States, we have laws that we have to follow and uphold," the spokesman said rather self-righteously.

What laws did he have in mind?

American law recognizes the custody rights of a biological parent unless there is "evidence of abuse." And the Cuban-American agreement of 1995 was clear about return of migrants intercepted at sea.

President Clinton, clearly embarrassed about the question, sought to distance himself from the dispute with a plea to follow the law and do what was best for the child. And slowly, the unmovable bureaucracy began to move.

Forgotten now is the demand that the father, Juan Miguel Gonzalez, come to Miami and appeal to an elected judge in a Florida court. Instead the Immigration and Naturalization Service sent agents to meet with Mr. Gonzalez and had him show documents to establish his paternity - managing finally to follow normal procedure in what had turned out to be a most abnormal case.

Elian's relatives and the organized Cuban-Americans will be furious over the return of their poster boy.

But, for once, common sense and common law appeared to be triumphing over political passions.